Tax Law Commons^™

Tax Constitutional Questions In “Obamacare”: National Federation Of Independent Business V. Sebelius In Light Of Citizens United V. Federal Election Commission And Speiser V. Randall: Conditioning A Tax Benefit On The Nonexercise Of A Constitutional Right, John R. Dorocak

The University of New Hampshire Law Review

[Excerpt] “The phrase “Tax Constitutional Questions” may seem to be an oxymoron or at least an interesting juxtaposition somewhat akin to the phrase “passive activity” derived from Section 469 of the Internal Revenue Code, which is familiar to tax practitioners, professors, and perhaps others. It has been noted elsewhere that it is seemingly normal that tax professors (and tax practitioners) are somewhat isolated from such weighty issues as constitutional questions.

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Despite what may be the tax bar’s seeming reluctance to engage in constitutional questions, those questions are nevertheless thrust upon tax practitioners and professors. Perhaps nowhere has the intersection …

Putting The Reign Back In Sovereign, Allison Christians

Pepperdine Law Review

In its first term, the Obama administration enacted two pieces of legislation, each designed to protect an increasingly vulnerable income tax base, and each of which had the potential to set a new and unprecedented course for no less than the regulation of the global economy by the nation-state. The first, the Foreign Account Tax Compliance Act (FATCA), sought to end global tax evasion through tax havens. The second, a little-noticed two-page addendum to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), sought to end the contribution of American multinationals to corruption in governance by codifying the transparency …

Has Government Tax Policy In Greece Led To A Large Shadow Economy?, Nils Thompson

Honors Projects in Economics

This capstone investigates the impact that tax policy has on the shadow economy in Greece. Greece has one of the largest shadow economies in the world and the largest in the European Union, with tax evasion being one of the main drivers. While previous research has provided measures of the shadow economy, none matches the shadow economy estimations with policies, laws, and agencies enacted by the government, specifically over the period in time of 1990-2012. This study contributes to the literature by connecting the policies implemented by the government with the size of the shadow economy in Greece, along with …

Taxing Food And Beverage Products: A Public Health Perspective And A New Strategy For Prevention, Jennifer L. Pomeranz

University of Michigan Journal of Law Reform

The power to tax and spend is considered a primary government power, and the use thereof is associated with great public health achievements. The greatest public health challenge at present stems from the increase in obesity and chronic diseases due to poor nutrition. Several taxation strategies have emerged in the health and economic literature to raise revenue, deter consumption, and address food prices and obesity directly. These proposals include taxing obese individuals, taxing problematic food products, and instituting a tax based on certain food components. This article weighs each proposal's value and disadvantages and concludes by proposing a new tax …

Horse Syndication: A Sure Footed Winner In The Investment Sweepstakes, Thomas R. Catanese

Pepperdine Law Review

Recent changes in the scheme of federal taxation coupled with increasing interest in the equine industry has propelled that industry into the forefront of tax sheltered investments. In this article the author takes an in-depth look at the federal securities and tax law aspects of a typical equine syndication as a tax sheltered investment.

The Legality Of California Development Fees, Erik B. Michelsen

Pepperdine Law Review

No abstract provided.

Recent Irs Guidance Provides A Degree Of Certainty For 403(B) Plans, Gregory L. Needles, Christina Payne-Tsoupros

Journal Articles

The IRS has released long-awaited guidance expanding the availability of self correction for 403(b) plans and opening the pre-approved plan program. On Dec 12, 2012, the IRS released Rev. Proc. 2013-12, 2013-4 IRB 313, which expanded its self-correction program -- the Employee Plans Compliance Resolution System (EPCRS) -- for 403(b) plans. On 3/28/13, the IRS issued Rev. Proc. 2013-22, 2013-18 IRB 985, opening its 403(b) pre-approved plan program. The broader scope of correction under Rev. Proc. 2013-12 is a welcome relief to 403(b) plan sponsors, who may now take advantage of EPCRS to remedy mistakes and avoid plan disqualification in …

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

Filing Status And Today's Families, Erik Baines

Law Student Publications

Section I of this comment considers the early income tax code, its focus on individual filing, and how early decisions of the Supreme Court of the United States led Congress to adopt optional joint filing for married couples. Section II analyzes the joint return, tax norms, and arguments of proponents and opponents of the joint return. Section III analyzes structural issues raised by a return to an individual filing system, as well as why an individual filing system is superior to a joint filing system given the changes in American society. It also discusses a proposal to resolve an inequity …

Taxing Privacy, Hayes R. Holderness

Law Faculty Publications

In the United States, many low-income citizens are being held to a harsher standard than wealthier citizens — these low-income citizens are being asked to relinquish their privacy in order to obtain the public assistance they need, whereas wealthier individuals are not subjected to similar levels of public scrutiny for government benefits that they claim. Giving up privacy can have devastating effects on individuals’ lives — they may suffer various dignitary harms, may experience repressed abilities to express themselves, and may even be coerced into important life decisions by the government. This situation presents a unique problem to the neediest …

Oil And Water: Mixing Taxable And Tax-Exempt Shareholders In Mutual Funds, Jeffrey M. Colon

Faculty Scholarship

As of 2012, roughly 23% of U.S. households’ assets and 50% of retirement assets are invested in mutual funds, thus making mutual funds one of the most important investment vehicles for U.S. households. The federal taxation of mutual funds and mutual fund shareholders has played a vital role in the development of mutual funds and their appeal to U.S. investors. Despite the significant amount of mutual fund assets held in retirement accounts, there has been very little analysis of the issues that arise when taxable and tax-exempt shareholders invest together in the same mutual fund. A substantial body of research …

Economic Justice And The Internal Point Of View, Adam J. Macleod

Faculty Articles

The West is in a tumult about money. In the United States, the Tea Party movement and the Occupy Wall Street movement captured the public's attention, sounding themes of fiscal irresponsibility and material inequality, respectively. Political negotiations over the so-called "fiscal cliff," the debt ceiling, taxes, and entitlement spending, have kept these themes before the public eye. In Europe, the protests have been more dramatic, and the declarations of national leaders that the European Union is in no danger of disintegrating have sounded at times suspiciously forceful.

Despite all of the exhortations that lawmakers should do something, the public debates …

Charitable Organizations And Commercial Activity: A New Era - Will The Social Entrepreneurship Movement Force Change?, Jaclyn Cherry

The Journal of Business, Entrepreneurship & the Law

It is no longer a new trend for charitable organizations to become involved in commercial activities. Thousands of nonprofit organizations have embraced the social entrepreneurial concept and have either created “commercial” type ventures as part of their nonprofits, have created spin-off organizations or subsidiary organizations, or have moved into the new area of hybrid organizations. Because there are no clear rules or guidelines for dealing with this issue, the third sector finds itself with rogue components and a spin-off group of hybrid organizations being loosely termed “social entrepreneurs.” Though these groups have grown in numbers in recent years, they have …

Agents Without Principals: Regulating The Duty Of Loyalty For Nonprofit Corporations Through The Intermediate Sanctions Tax Regulations, Carly B. Eisenberg, Kevin Outterson

The Journal of Business, Entrepreneurship & the Law

Delaware corporate law imposes a duty of loyalty on officers and directors as a mechanism to regulate and deter self-dealing transactions. In nonprofit corporations, however, there are generally no shareholders with direct financial incentives to monitor against self-dealing. In the absence of shareholders and other principals, Congress and the IRS have articulated duty of loyalty rules for nonprofits that reach far beyond those applied to the for-profit world--most prominently the § 4958 intermediate sanctions. This article identifies the persons who owe a duty of loyalty to a nonprofit corporation, the applicable fiduciary standards for violating the duty of loyalty, and …

How Nations Share, Allison Christians

Indiana Law Journal

Every nation has an interest in sharing the gains they help create by participating in globalization. Citizens should be very interested in discovering how well their governments fare in claiming an adequate share of this international income stream, since a government that cannot or will not exert its taxing jurisdiction internationally is potentially missing out on a very large and very productive source of revenue. Yet it is all but impossible for citizens to observe exactly how, or how well, their governments navigate this aspect of economic globalization. The vast majority of international tax law plays out in practice through …

The Normative Underpinnings Of Taxation, Sagit Leviner

Nevada Law Journal

No abstract provided.

The Exit Tax: A Move In The Right Direction, William L. Dentino, Christine Manolakas

William & Mary Business Law Review

Citizenship-based taxation was first enacted during the Civil War, in large part to express congressional disapproval of wealthy individuals who fled abroad to avoid bearing the financial and physical burdens of the war. A century later, motivated by a desire to encourage foreign investment in the United States, Congress passed legislation in 1966 that offered significant tax incentives to nonresident aliens, thereby creating an opportunity for tax abuse. To discourage U.S. citizens from expatriating to avoid U.S. taxation, Congress contemporaneously enacted I.R.C. section 877, which taxes expatriates on certain U.S.-source income for a ten-year period after expatriation. Congress, and the …

Federal - State Tax Coordination: What Congress Should Or Should Not Do -- Testimony Of Walter Hellerstein On Tax Reform: What It Means For State And Local Tax And Fiscal Policy, Before The Committee On Finance, Walter Hellerstein

Scholarly Works

Testimony of Walter Hellerstein, Francis Shackelford Professor of Taxation Distinguished Research Professor, before the Committee on Finance, hearing on Tax Reform: What It Means for State and Local Tax and Fiscal Policy, United States Senate, April 25, 2012.

The U.S. Tax System: Where Do We Go From Here?, Adele C. Morris

Brookings Scholar Lecture Series

This talk will explore how the U.S. tax system really works, where revenue comes from, where spending goes, what a tax expenditure is, and discuss deficit prognoses and how the recent political debates could affect our economy. The speaker will highlight some advantages and disadvantages of different budget balancing options.

U.S. Treaty Anti-Avoidance Rules: An Overview And Assessment, Reuven S. Avi-Yonah, Oz Halabi

Law & Economics Working Papers

In this article, the authors provide a summary of the anti-avoidance rules in the United States that relate to bilateral tax treaties. Specifically, they focus on treaty-based anti-avoidance rules and discuss whether or not a General Anti-Avoidance Rule would be appropriate in this context.

Authentic Reproductive Regulation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In this response to I. Glenn Cohen’s article, Regulating Reproduction, Professor Crawford notes the ways in which Professor Cohen’s questioning of “best interests” logic challenges legal scholars to reexamine received wisdom. She then evaluates Professor Cohen’s critique of “best interests” in the context of income taxation of surrogates. Professor Crawford concludes that Professor Cohen’s “unmasking” project—designed to reveal the authentic reasons for reproductive regulation—enhances the discourse about reproductive law and policy

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article sets out to analyze both intellectual property laws and tax systems as applied to software. The article also analyzes software within the intellectual property doctrinal framework, and examines both the federal and state tax systems governing software.

The Unjustified Subsidy: Sovereign Wealth Funds The Foreign Sovereign Tax Exemption, Jennifer Bird-Pollan

Fordham Journal of Corporate & Financial Law

The taxation of Sovereign Wealth Funds in the United States is outmoded and due for reconsideration. Offering a tax exemption to the billion dollar investment funds owned by foreign governments is both unfair and ineffective. Founded in the principles of sovereign immunity, the foreign sovereign tax exemption, codified in I.R.C. § 892, fails to satisfy the Congressional goals that motivated its creation. This Article explains the current taxation of foreign sovereigns and, by extension, Sovereign Wealth Funds. It then illustrates that the current exemption is simultaneously too broad, providing a tax exemption for activities that are clearly nongovernmental activities, and …

The Unjustified Subsidy: Sovereign Wealth Funds And The Foreign Sovereign Tax Exemption, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The taxation of Sovereign Wealth Funds in the United States is outmoded and due for reconsideration. Offering a tax exemption to the billion dollar investment funds owned by foreign governments is both unfair and ineffective. Founded in the principles of sovereign immunity, the foreign sovereign tax exemption, codified in I.R.C. § 892, fails to satisfy the Congressional goals that motivated its creation. This Article explains the current taxation of foreign sovereigns and, by extension, Sovereign Wealth Funds. It then illustrates that the current exemption is simultaneously too broad, providing a tax exemption for activities that are clearly nongovernmental activities, and …

Fixing Section 409a: Legislative And Administrative Options, Gregg D. Polsky

Scholarly Works

This symposium contribution to the Villanova Law Review describes the legislative calamity that is section 409A of the Internal Revenue Code. Section 409A manages, all at once, to (i) fail to better neutralize the tax treatment of deferred compensation with that of current compensation, (ii) impose significant compliance costs on sophisticated taxpayers, and (iii) provide a dangerous trap for unsophisticated taxpayers.

Ideally, Congress should repeal section 409A and replace it with a system that taxes deferred compensation more neutrally vis-a-vis current compensation. Failing that, Congress should either replace section 409A with a broad grant of authority to the Treasury and …

The "Independent" Sector: Fee-For-Service Charity And The Limits Of Autonomy, Lloyd Hitoshi Mayer

Journal Articles

Although numerous scholars have attempted to explain and justify the benefits provided to charities, none has been completely successful. Their theories share, however, two required characteristics for charities. First, charities must be distinct from other types of entities in society, including governmental bodies, businesses, other types of nonprofit organizations, and informal entities such as families. Second, charities must provide some form of public benefit. Given these defining characteristics, the principal role for the laws governing charities is to protect charities from influences that could potentially undermine these traits. This Article is the first to recognize fully the importance of this …

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

Oklahoma Law Review

This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries and proposes two alternative legislative solutions for the over-taxing of plaintiffs in these cases. While plaintiffs who recover personal injury awards typically receive favorable tax treatment, those who receive interest on such awards are taxed on the interest and often are not able to utilize deductions for attorney’s fees and other costs paid to obtain the award. Further, the attorney’s portion of the recovery in a contingency fee arrangement will be included in the plaintiff’s gross income. The result is that the plaintiff recovers less …

Wage Taxes And Compensating S Corporation Officers And Members Of Llcs And Llps, John W. Lee

William & Mary Annual Tax Conference

No abstract provided.

Compensating Employees And Employee Owners, And Avoiding Problems With Payroll Tax And Executive Compensation Audits, Mary B. Hevener

William & Mary Annual Tax Conference

No abstract provided.

Fiscal Federalism In The United States, Walter Hellerstein

Presentations and Speeches

This presentation explores the fiscal powers of U.S. Federal and State governments with respect to taxation and spending.